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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
EASTMAN CHEMICAL COMPANY ) Docket No. A 12-CA-57 SS)
vs. ) Austin, Texas)
PLASTIPURE, INC., )CERTICHEM, INC. ) February 6, 2013
TRANSCRIPT OF ALL PENDING MATTERSBEFORE THE HONORABLE SAM SPARKS
APPEARANCES:
For the Plaintiff: Mr. Rick HarrisonFritz, Byrne, Head & Harrison98 San Jacinto Boulevard, Suite 2000Austin, Texas 78701
For PlastiPure: Mr. George B. ButtsGeorge Butts Law8911 North Capital of Texas HighwaySuite 2120Austin, Texas 78759
Mr. Robert G. HargroveHays & Owens807 Brazos Street, Suite 500Austin, Texas 78701
For CertiChem: Mr. Ray N. DonleyMr. Steven J. WingardScott, Douglass, McConnicoOne American Center600 Congress Avenue, 15th FloorAustin, Texas 78701
Court Reporter: Ms. Lily Iva Reznik, CRR, RMR200 West 8th StreetAustin, Texas 78701(512)916-5564
Proceedings reported by computerized stenography, transcriptproduced by computer.
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 1 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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THE COURT: 12-CA-57, Eastman Chemical Company vs.
PlastiPure, et cetera.
I have a motion for protective order and several
ancillary motions that relate to it, motion to file the document
sealed, motion to strike an affidavit of O'Brien, motion to seal
the motion to strike.
So the defense has the motion.
MR. HARRISON: The plaintiff has the motion for
protection, your Honor.
THE COURT: Okay. Then you have it.
MR. HARRISON: Your Honor, yesterday, you were
delivered some notebooks by the defendants with their motions in
them. It didn't complain -- their pleadings, it didn't contain
the plaintiff's motion in reply. I made notebooks, knowing you
need extra paper. If it's convenient for the Court and the
clerk, I'll be happy to give them. They only contain our motion
and our reply that's the subject of the hearing.
THE COURT: I didn't receive anything yesterday.
MR. HARRISON: I just got a letter from Mr. Donley they
delivered it to your chambers.
THE COURT: Did you get anything yesterday?
LAW CLERK: No.
THE COURT: Maybe they gave it to Judge Yeakel. I'm
just going to assign this case to Judge Yeakel.
MR. WINGARD: We intended to file with you a courtesy
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 2 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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copy of the motion to strike the affidavit because it's our
understanding that things that are filed within two days of the
hearing do not --
THE COURT: We've had a lot of trouble, yes. Okay.
Well, I'm sure -- that's to strike O'Brien's affidavit?
MR. WINGARD: Yes, sir.
THE COURT: All right. Okay. The only -- yeah.
MR. HARRISON: Your Honor, and I'm going to try to be
quite brief. I do want the Court to know since this is also a
status conference on all issues, this is a significant case.
Eastman will show damages at trial over $5 million. We've taken
13 depositions, I believe. Counsel and I have conferred
yesterday, we have 15 or more to go. We've exchanged over
100,000 pages of documents. I think we're close to the end of
the paper trail.
But all this -- this case began, your Honor, with the
defendant publishing statements about Eastman's Tritan.
THE COURT: I remember.
MR. HARRISON: And so, Eastman brought this case under
the Lanham Act concerning those statements, which we allege to be
false. The defendants' business model, your Honor, which will be
presented in writing, is to create a public panic about endocrine
activity in plastic so the public will -- and manufacturers will
go to the defendants and secure, supposedly, EA-free plastic.
And this penchant for publicity is really why we're
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 3 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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here today: because as pointed out in Exhibit C to our motion,
Dr. Bittner, who's the founder of the defendant companies, stated
in a press release last July that this case shouldn't be tried in
a court of law. It should be tried in a court of public opinion.
So we're here today, your Honor, about two categories
of documents. One, a draft manuscript that was sent to a journal
and portions of it ultimately published, and then, the base
underlying --
THE COURT: The portion published was published as one
instrument?
MR. HARRISON: Yes, your Honor.
THE COURT: Okay. I want to be sure.
MR. HARRISON: And then, also, the other category is
the underlying test data from four laboratories that have done
testing on Eastman's Tritan and which Eastman has publicly stated
that the tests show that Tritan is EA-free or has no endocrine
activity.
The documents in question have the lowest level of
protection under the Western District protective order. They're
labeled confidential which, as your Honor knows, they can be used
by any of the litigants, the parties, their witnesses for the
pursuit of this case. They just can't be publicly disclosed.
And what the defendants want to do and what they've told us they
want to do if they're successful at this hearing, your Honor, is
to take some of these documents out of context and go public with
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 4 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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them.
For instance, with the journal there are statements by
the five authors that they were funded by Eastman in
participating and writing the paper. Those have never been made
public, and, for whatever reason, the scientific journal that
published the paper did not make any mention that Eastman funded
the study.
So if those letters are allowed to go public, it will
be in the context of, well, Eastman paid for this, but the
journal says that they didn't, or doesn't say anything, so
somebody's hiding something here. We can't battle that in the
court of public opinion, your Honor. They're free to use those
in cross-examining witnesses. They're free to use it in front of
a jury. You know, they can go to credibility or whatever. But
to pull those statements out -- because Eastman couldn't control
what the publisher did. It didn't -- you know, it didn't know or
have any say over whether the publisher said Eastman paid part of
this or Eastman didn't. It's why it's confidential, your Honor.
And it would just be a manifest injustice, we believe,
to allow that to go out to the public, totally out of context.
And I want to, again, emphasize that --
THE COURT: Well, you've had an article.
MR. HARRISON: Yes, sir.
THE COURT: A publication.
MR. HARRISON: Yes, sir.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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THE COURT: Apparently there was a draft of it and
then, a final publication and it's published.
MR. HARRISON: Exactly. And the published article,
there's no problem with it, your Honor.
THE COURT: Well, but your problem is who paid for it.
That they're going to say you paid for it; therefore, there's no
validity to it.
MR. HARRISON: Yes, sir.
THE COURT: Okay.
MR. HARRISON: And I just -- all we want --
THE COURT: We see that all the time.
MR. HARRISON: Well, of course. But we see that in the
context of our rules, our evidence, and we can handle that here.
It's hard for us to handle, though, if it's a press release to
the United States that Eastman hid the fact that it funded the
study. Eastman had no control over what that paper ultimately
said. That's the problem, your Honor. We shouldn't be put to
the task of having to defend out in the public arena something
like this.
Likewise, your Honor, with respect to the tests,
defendants seem to take the position that because Eastman has
said we've tested Tritan and it's EA-free, that that opens the
door to all of the underlying tests that have been done. And
again, they have access to all those tests, they've been
furnished to them. They're getting ready to go and depose the
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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four testing labs that did the tests. They're going to learn all
of that.
But let's just say in an entity that did 100 different
series of tests on Tritan, one showed that it might have EA, an
outlier. But if they can get you to remove the confidentiality
layer on all of those tests, they can go public and say, Eastman
lies when it says that Tritan is EA-free because testing company
X found EA in this one test. The public won't know that testing
company X did 100 tests and sent a report to Eastman that said,
we believe Tritan is EA-free.
And so, again, it will be -- it will go public totally
out of context and to Eastman's detriment. And the curious
thing, your Honor, is that defendants won't even produce all of
their underlying test data to the plaintiff. There's some they
won't even give us, say it's too secret to show you, although
they have published documents and they were public that say,
we've tested thousands and thousands of types of plastic and 92
percent of them have EA. But they don't want us to even be able
to use that and see it at all.
What we do have, a lot of it is labeled "AEO" so our
client can't see. And we've kind of roped along and lived with
that, your Honor, to avoid being here. But if we're going to be
trying this case in the newspaper, then we're going to be back in
here asking you to release classification on their documents, and
it just gets, to me, worse and worse.
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 7 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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There is no detriment to the defendants to go forward
with the classifications just as they are. They have total
access to these documents. They can use them any way they wish.
But they've shown you no good reason to remove the classification
so they can go public with them. And --
THE COURT: Do I even have a motion to that effect?
MR. HARRISON: Well, once you -- the way your order
works, your Honor, is that we classified the documents
confidential. They sent us a letter saying, we're challenging
that classification on these particular documents. Once they did
that, it triggered a 14-day period during which we had to file a
motion to protect the classification.
So our motion to protect, if you deny it, means that
our classification automatically goes away, and the documents
have no protection.
THE COURT: Well, so what do you want me to do?
MR. HARRISON: I want you to grant plaintiff's motion
to let us maintain the classification of these documents.
THE COURT: That relates to a published,
out-in-the-world article.
MR. HARRISON: No. That relates to five letters that
the coauthors of that article sent to the publisher that have
never been made public. That's what I want to protect. And,
also, these hundreds and hundreds of individual tests that have
been done by these laboratories, I want to protect those so they
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 8 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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can't be taken, one, out of context and taken to the public
arena.
And I'm doing no more than they've done in spades --
THE COURT: Well, now, now, now, I'm not worried about
what they've done yet.
MR. HARRISON: I gotcha.
THE COURT: But I don't see -- are all of these tests
that were done, done in a confidential manner?
MR. HARRISON: Yes, sir.
THE COURT: And their results never released to the
public?
MR. HARRISON: No.
THE COURT: Except you've indicated.
MR. HARRISON: I'm sorry. I misspoke.
THE COURT: You've indicated to me, just now, that you
said we've tested thousands and we're home free.
MR. HARRISON: Here's what happens, your Honor. A lab
will test -- they'll run a number of tests, and then, they'll
write Eastman a report. We've definitely gone public with the
reports from those laboratories. And the reports are, after
looking at all this data, we don't find any EA in Tritan.
But if you go down into the, you know -- and I don't
even know it to be the case, but I suspect, because I know now,
after being in this case a year, kind of how all of this testing
works, I'll bet you can find an outlier test that, you know,
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 9 of 39
But not the data as in a peer-reviewed study
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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shows some potential for possibly having EA, and it will be one
out of many, many.
And so, I don't believe -- since that laboratory has
issued a report, they can go to the lab. They're getting ready
to. They can take their deposition. They can point out whatever
they find, see how the lab explains it, and then, we try that in
front of your Honor and a court and a jury. But to take anything
out of context and go public with it, send it to NGOs, issue a
press release, oh, look, here it is, this test showed possible EA
in Tritan. It's difficult for Eastman to battle that and it
shouldn't have to, your Honor. That's what the classifications
are for.
We're just trying to keep --
THE COURT: You know, I have a lot of patents cases. I
have a lot of Lanham Act cases. I can't control the press. I
can't control the press -- I can impose sanctions when I think
it's inappropriate. But here, you want me to blank it out. As
far as I'm concerned, I wouldn't seal anything. It's a lawsuit,
it ought to be exposed. You are the ones that sealed things, not
this court.
When you file motions to seal and there's no
opposition, I sign on to it. Anybody comes in under the law that
they think could, the press, for example, I've got to go through
an elaborate procedure and nine times out of ten will release the
information. The information is always released when you get to
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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trial because I don't seal the courtroom. It's a public
courtroom that media can sit out there and listen to whatever
they want and print whatever they want.
And you say this is an important case. Every single
case that's in federal court is important --
MR. HARRISON: Certainly it is.
THE COURT: -- to the litigants. And I'm not a
policeman of what anybody publishes.
MR. HARRISON: Well, your Honor, you do have control
over what the litigants do with their documents and the documents
they're being required to produce in the court process. And
here -- and you have Dr. O'Brien's affidavit and they've got some
attacks on it, based on the deposition and questions that were
asked totally out of context to his declaration.
THE COURT: Well, they -- that's not even here. They
say he gave testimony in opposition to his affidavit, but they
didn't confirm it with anything.
MR. HARRISON: Well, what they -- what he said in his
declaration that's attached to our motion is that with these four
laboratories, they operated under nondisclosure agreements and
the testing -- the raw data of the tests has always been
maintained confidential by Eastman and by the laboratories. So
it has always been maintained that way.
THE COURT: You're going to use the results of those
tests.
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 11 of 39
Impossible to peer-review or replicate. Low credibility.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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MR. HARRISON: Yes, sir. I'm going to use the results
of the ultimate testing program. Yes.
THE COURT: Well, yeah, you can -- but they are
entitled to the cross-examination of how you got there and what
they also found.
MR. HARRISON: But, your Honor, they can do that. A
confidential document is totally available to them. They can use
it with their experts. They can use it with their clients. They
can use it with anybody that's --
THE COURT: Has Eastman published anything that we've
done testing and there's no validity to this attack?
MR. HARRISON: Eastman has stated that it has --
THE COURT: Right. You've used it for the same purpose
they're trying to use it.
MR. HARRISON: But what we have not done is gotten down
into the labyrinth of tests -- and, your Honor, if the rules are
we don't want to seal anything, then we'll just come over here
Friday with a motion to unseal everything they've got, and we'll
try it all open, if that's the Court's, you know, inclination.
THE COURT: It's not the Court's inclination. What I'm
telling you is everything that's sealed is because y'all asked
it. If you're going to complain about it, I'll release it. I
think everything ought to be in the public, anyway.
But you can't file a lawsuit, suing for millions of
dollars, and then, come in and say, there may be something that
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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they can find and they're going to say something ugly. People
say things ugly all the time, and if they say it erroneously,
then you've got a cause of action against them. If they say it
legally, you don't have a cause of action against them.
MR. HARRISON: Your Honor, all this documentation, they
have. We've given it to them. We've just said, you have to put
the lowest layer of protection on it so you don't put it in the
Austin American-Statesman. You can use it any way you want to to
further this litigation, and they have it and they've been using
it.
THE COURT: All right.
MR. HARRISON: Thanks.
THE COURT: I'll hear the other side.
MR. WINGARD: Your Honor, Steve Wingard for CertiChem.
I'm here with Ray Donley. George Butts and Rob Hargrove
represent PlastiPure.
The reason that CertiChem and PlastiPure want to
declassify these documents is because they're not confidential.
Eastman's argument has put the burden on us to prove that these
documents need to be declassified where, in fact, the burden is
that the party that's seeking to protect the information has to
come forward with the particular and specific demonstration, and
not conclusory statements, that the material is either trade
secret or confidential, and that there is some identifiable and
significant harm that would befall Eastman if these documents
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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were declassified.
THE COURT: If I've taken something out of context and
put it in the national press I think would constitute that.
MR. WINGARD: Your Honor, there is -- there's no
statement in Mr. O'Brien's declaration that meets that
evidentiary requirement. There's no statement in his declaration
that meets the first requirement that shows with particular and
specific demonstrations of fact that there are trade secrets or
confidential information in the two very limited areas of
evidence that we'd like to be declassified. And the first area
is the paper that was submitted by an independent -- not by
Eastman, by an independent third-party author to an independent
scientific journal.
Independent third-party author wrote the paper, sent it
to an independent scientific journal without reservation.
There's nothing in that transmission of the manuscript that says
anything in here is confidential. And there's no evidence before
this court from that author, from the journal, or from anybody
else, that that's -- that transmission of information was
intended to be confidential.
Mr. O'Brien may say it's typically these sorts of
submissions are kept confidential, but he doesn't give the
particular specific demonstration of what the confidentiality
agreement was in this case for that submission.
THE COURT: Well, didn't I just hear counsel say that
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Author was paid (not independent)
journal known for industry bias, not objective
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the publisher of the article and his client considered it
confidential or had an agreement that it was confidential? I
mean, didn't I just hear that?
MR. WINGARD: I don't think you heard counsel, Mr.
Harrison say that there was some sort of an agreement between Dr.
Osimitz, who was the corresponding author, and the Food and
Chemical Toxicology editor Elsevier. I don't think there's any
evidence that come close to saying that.
Instead, I think there is a declaration and a statement
in the declaration from Mr. Emmett O'Brien where Mr. O'Brien says
that these sorts of things are generally kept confidential. And
the peer-review process is really what he focuses on because he
was mistaken in his belief that what we were seeking to
declassify included the peer-reviewed comments that in the
scientific journal area are typically not released to the public.
We're not trying to make any of those peer-reviewed
comments public. We're simply trying to say that when a
third-party author submits a manuscript for publication to a
scientific journal and there's no reservation or any kind of a
statement that this is supposed to be kept confidential, it's
just not confidential, and they haven't met their burden.
In the second very --
THE COURT: I thought he said that you were trying to
say that Eastman paid for it.
MR. WINGARD: Part of the submission. That submission
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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between Dr. Osimitz and the journal includes what they call
conflict of interest statements. Those conflict of interest
statements from the three or four scientists who ran the tests
all do say that Eastman paid for and funded this work. And that
would be part of what we would declassify. That's right.
The second area of --
THE COURT: So why don't you select something that you
want me to declassify for them and y'all stop bothering me, and
I'll declassify one for each side until we have a trial? Let's
make it weekly. I'd like to get y'all to bother me every week
about what's going to be in the press, as if a single juror is
ever going to hear it, why the competitor market might be that
type of thing.
But don't give me this you want just good public to
know everything. Y'all are competitors. You're suing each
other. And you want to take one part out of this for them and
say, these tests are not valid because Eastman paid for it, which
doesn't mean they're not valid at all, but you might can get a
press release to say that.
MR. WINGARD: Your Honor, I'm not agreeing with Mr.
Harrison's characterization of why we want the stuff
declassified.
THE COURT: I understand that. I understand that.
MR. WINGARD: Eastman is a multi-billion-dollar company
that's trying to squash my client, trying to kill it before we
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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even get to trial. And the major basis of them doing it is
they've got this published, peer-reviewed scientific journal that
they're taking to people who would otherwise be our customers.
THE COURT: And so, disprove it in the courtroom.
MR. WINGARD: We will. We will.
THE COURT: This is no different from a patents case
that involves millions and millions and billions of dollars, and
they get all sorts of information that may or may not need
sealing, but they all want everything sealing. They try their
case and the winner gets to publish whatever they want. I won't
seal a courtroom. So all of this is going to come out in a
trial.
Now, you're set for July. Why do you want to do all of
this right now?
MR. WINGARD: Your Honor, we want to be able to go
public with things that are already public -- that are public.
They're not private. They're not confidential. They haven't
showed any --
THE COURT: Why?
MR. WINGARD: Because we're trying to get -- we're
trying to be able to take the information that they're using
against us to kill our business and show that the folks who would
do business with us, what their testing really shows.
THE COURT: Well, why didn't you do it a year ago?
MR. WINGARD: We didn't have all the data and the
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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analysis of the data until recently.
THE COURT: How long have you had it?
MR. WINGARD: Your Honor, I think we probably got their
data beginning in August of last year.
THE COURT: And then, all of a sudden, you decide with
an oncoming trial to try to get some publicity. So you've had
last year, '12, six months?
MR. WINGARD: Your Honor, on this issue -- if I may
explain that. On this issue, we have been talking to Eastman
about this for months. We have been trying to avoid coming here
and bothering this court. We've talked about lots of different
issues. And I think, you know, it's a compliment to Mr. Harrison
and a compliment to Mr. Butts on both sides that we have not had
to bother you since we became involved in this case.
This is a very important issue to our client. This is
an issue that may make or break the client before we get to
trial. And the point is that they can't meet the burden that
they have to meet because this information -- and I want to make
this clear because I think maybe the record will be unclear
otherwise.
The data that we're seeking to have declassified is not
all of the data from every test that Eastman has given us in this
case. It's just the data that's the data discussed in the
publication, a peer-reviewed publication that Eastman has made
public. Eastman chose to make certain of its data public through
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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graphs and summaries and descriptions of what their tests were
and what their tests show. We're seeking merely to have that
manuscript and the data that underlies the manuscript
declassified.
And so, I don't want the Court to think that this is
going to be where we're taking all of the information that
Eastman has given us and trying to declassify. We agree that
some of their technical testing information has never been
disclosed publicly and should remain classified. But that which
they have chosen to put on their website, discussed in scientific
conferences, and big posters talk about things that they have
decided to feed to the public relations firms who speak to all
the journalists in the news media outlets.
You know, all of the damages that they can identify in
this case, Judge, every bit of it, they have no actual harm from
anything that we've ever said other than what they call
corrective advertising. They spent a half a million dollars to
hire a PR firm to go out and plant information in various media
sources, including things like, you know, everything from Twitter
to the New York Times.
So that's the damages that they're going to show the
jury in this case. Nothing but corrective advertising. And yet,
they're here complaining that we might go to the media. And so,
it's --
THE COURT: All right. You're representing to me that
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what you want and to have published is the residual data
supporting a published article that has not heretofore been
published by Eastman.
MR. WINGARD: They have published some of the data and
not all of the data, and we would have the data in its entirety.
They talk about particular tests that they ran and those form the
basis of the paper, and we would have the Court declassify all of
the data from those specific tests that they discussed in that
paper and nothing else. That's it.
THE COURT: What about the one that ran the data?
MR. WINGARD: Pardon me?
THE COURT: What about the author of the publication?
MR. WINGARD: The author --
THE COURT: It seems to me that you have a copyright or
they must have some protection.
MR. WINGARD: Your Honor, that's a good point and
that's what I thought they would have supported their motion for
protection with is something from the author of the paper,
something from the journal itself. Some --
THE COURT: Is he or she or it aware that this is what
you're going to do?
MR. WINGARD: Your Honor, Dr. Osimitz is working
intimately with Eastman in publishing additional papers. If they
could have gotten an affidavit from Dr. Osimitz, I'm sure they
would have gotten an affidavit from Dr. Osimitz if that was
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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intended to be confidential.
When Dr. Osimitz responded to a subpoena in this case,
Dr. Osimitz presented all this same information not marked
confidential because he didn't view it as confidential. They
didn't have an affidavit from Dr. Osimitz, who wrote the paper,
that it was confidential because he doesn't think it's
confidential.
THE COURT: What's the publication called?
MR. WINGARD: Food and Chemical Toxicology.
THE COURT: And when was it published?
MR. WINGARD: In 2012. It was submitted on August 24th
of 2011. But you're asking when it was published.
MR. DONLEY: February of 2012.
MR. WINGARD: February of 2012.
THE COURT: And is that what it was -- is Food and
Chemical Toxicology the magazine or the book that it was --
MR. WINGARD: Yes, Judge.
THE COURT: And it was Dr. Osamit, O-S-A-M-I-T?
MR. WINGARD: It's O-S-I-M-I-T-Z.
The specific pages that comprise the submission of the
manuscript that we would like declassified are attached to our
response. So you can see exactly what this submission looked
like. The data that underlies this submission is scattered
throughout Eastman's production. I'm not asking the Court to
identify by Bates label that which would be declassified. I'm
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confident if the Court were to make the order that the data be
declassified, that working with Mr. Harrison and his team, we
could identify and reach agreement on that data that underlies
the paper.
But, Judge, that's our response that they had a burden
to meet when they came into that, and they haven't met it.
THE COURT: I'm still not -- you say it's data
scattered throughout Eastman.
MR. WINGARD: Well, yes. Let me give you a "for
instance."
One of the testing institutions that provided
information that made it into the publication was a company
called CeeTox. That's C-E-E-T-O-X. CeeTox did a variety of
tests on different things. They tested monomers that go into the
Tritan copolymer resin. They also tested extracts from the
copolymer resin. What was put in the paper, in the Food and
Chemical Toxicology paper was the data that related to testing of
the monomers but not data with any of the testing of the extracts
from the Tritan resin.
We would not seek to declassify the reports or any of
the underlying data from the testing of the resin. We would seek
to declassify the testing of the monomers because that's what was
in the paper. And those reports, just because of the way that
they were gathered, I assume, are produced in various iterations.
You know, maybe this guy got them in the e-mail on one day, and
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then, person, you know, X got it on a different day in a
different e-mail. So you'll see repeated copies of all of these
bits of information.
We would only ask, you know, one version of that which
was published in the paper be declassified, and I think the
parties could reach agreement between themselves what the scope
of that declassification is.
THE COURT: Okay. Mr. Butts wants to get up.
MR. BUTTS: If I could have just a couple of words.
I'm George Butts. I represent PlastiPure.
Let me focus what we're -- why we're asking for this
information. The paper that was published, as has been said, did
not disclose that Eastman paid the author and that Eastman and
others participated in drafting the paper and were also paid by
Eastman. The information that we're seeking to have disclosed --
and this is just a tiny tip of an iceberg about all of the
testing that's been done and the information available about this
does not -- would disclose what the paper as published did not
disclose, that is, that Eastman paid the person who wrote this
paper and all of the people who participated and contributed
information to the paper. They were all paid by Eastman.
Now, Eastman has published information on a continuing
basis about the test that they did. They don't publish the test
results, which are just little numbers that don't mean a lot.
But they have said, time and again, and have published to their
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customers, to the public in brochures, in videos, in speeches,
that all of their tests show that there is no EA.
What our clients who have been just completely kind of
-- they just had a lid put on what they can discuss about this
issue would like to do is to show at least some little glimmer of
light on what's been going on, and that is simply to be able to
show that this paper that Eastman has been touting as a basis for
saying there is no estrogenic activity in their product was paid
for lock, stock and barrel by Eastman. And at this point, we
can't say that because that information was confidential under
the Court's order but as designated by Eastman.
We're simply asking the Court as to that piece of
information and there could be, I agree with the Court, thousands
of other pieces of information on both sides that could and
should be released to the public. We're asking just in this
motion as to that specific thing that the confidentiality order
be lifted. And let me say one other thing and then, I'll sit
down.
THE COURT: What about all the data underlying the
article, the statements and article that hasn't been -- you know,
that's more than identifying that it's funded by Eastman. I
mean, y'all are leaving me --
MR. BUTTS: That was published in an article.
THE COURT: -- and I don't have a tree.
MR. BUTTS: The data that we're talking about in this
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narrow focus as to this paper, that data is, for the most part,
published in the article.
Now, there is an immense amount of data and when we try
this case -- and I'm -- I don't see any way the case isn't going
to be tried -- we're going to have a lot to say about the testing
that Eastman did, about the quality of it, about the design of
it, which was clearly calculated to be sure they didn't find any
EA.
But the data that we're talking about here was, for the
most part, published in the paper. What we're talking about that
would be in addition to that is simply letting the world know,
simply letting the -- and let me say, I agree with the Court.
The jurors who might read anything about this -- they probably
won't read it, they won't care about it, they won't understand
it. We'd like to be able to talk to our customers, people who we
are trying to get to do business with these two tiny companies
that Eastman has its foot on their throat and doing everything it
can to squeeze the life out of it.
No. I'm talking about releasing information that we
can use.
THE COURT: I'm talking about let's stay with what
we're doing. I don't see any jurors over there.
MR. BUTTS: No. I understand. I'm talking about right
now, releasing information that we can use that we can attempt to
save these companies with by going to potential customers and
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saying, look here, everything that Eastman has said at least in
this paper, they paid for.
THE COURT: I think we've moved from data to an
admission that you paid for. Why wouldn't you have to answer an
interrogatory request for admission admitting the amounts that
you paid to whom participated in this article?
MR. HARRISON: Just never has been asked, your Honor.
THE COURT: Well, I mean, that's just information that
you can't get out of.
MR. HARRISON: And, your Honor, we're not trying to do
that. We just would like for everything to be -- be done in a
proper context. I attached to our motion two press releases Dr.
Bittner released last summer, and he says things like, defendant
CertiChem and PlastiPure have results that show Tritan resins in
products leach chemicals having significant EA. EA is harmful
for people. Eastman Chemical squelching debate on consumer
safety in baby bottles, August 13th, Austin, Texas.
Bear in mind that the business model of the defendants
is to scare the public and get them to run to the defendants for
a seal of approval on their plastic. All they're asking for is
more fuel for that.
But let me just -- let's go to where we are here, this
motion. They said we didn't show any -- meet any burden of
proof. Dr. O'Brien's declaration states very clearly that the
European Safety Commission, their equivalent of the FDA, are
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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trying to minimize animal studies.
So if a company goes to the -- I don't remember the
acronym for it but to that entity to register a new compound for
using and a study has already been done -- let's say one of the
monomers in Tritan, DHDM, or whatever, Tritan -- Eastman has done
animal studies on that. Well, this new registrant is not
permitted to go do new testing. It has to go and purchase access
to that testing from someone that's already done it.
That being the case, Eastman's testing has significant
monetary value because they've done it. It's sitting there.
Other entities can purchase it. All that value goes away if it's
not deemed confidential. And that's why they've always held all
of that baseline testing to be confidential. Has nothing to do
with the results or what they've said about the results, but it's
-- you go into all these rat studies and everything we did,
that's confidential because we can sell it.
So we did meet our burden on it. There's a significant
issue at Eastman if you just rip confidential off of these
underlying tests. Now, I don't even know what they really mean
when they say, well, we only want the test that underlie the
article. If it's of assistance to the Court, the article that
was published is attached to Dr. O'Brien's declaration, and it
has, you know, charts and things in it, I can't even read it.
And I don't know if they're just limiting themselves to the tests
that are behind these charts or not.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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I know there's a lot more testing. And every
indication I have from the defendants was that they wanted
everything to be made public. And I'm not sure right now how we
can describe --
THE COURT: I was trying to write it down as to get a
description of the underlying data that they want. And Mr. Butts
says that they just want to show the world that that study was
funded by Eastman, just like studies that are funded by Pfizer
for medications that come out, that come out every day.
MR. HARRISON: Your Honor, next on the 20th of
February, they're supposed to take the deposition of Dr. Hussins.
All they have to do is ask it and he'll tell them, you know, and
then, it comes out. Our only problem is Eastman didn't hide the
fact. It's never hidden the fact. But here, we have a situation
where five statements of conflict that were filled out for this
publisher were filled out truthfully, and so forth, and then, the
publisher, for whatever reason, decided not to publish it. Using
that as a juxtaposition to somehow insinuate that Eastman hid the
fact of this funding isn't right.
All they need -- they could have asked it in
interrogatory. They could have asked an RFP. They can go and
they're going to depose Dr. Osimitz in two weeks and just ask
him, were you paid for this? He'll say yeah. How much? He'll
say how much. In fact, they've already got his file.
THE COURT: I take it that there were a lot of sources
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Publisher never has been heard from. This is unethical.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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for this.
MR. HARRISON: There's five authors to that paper, and
they're going to depose nearly every one of them. It's just that
no one has ever asked Eastman about this. But right now, it's in
a context where a confidential submission to this publisher may
say it's not confidential.
They have Dr. Osimitz' nondisclosure agreement with
Eastman. And so, all of the stuff he's done and all the stuff
that he has sent under -- in response to a federal subpoena they
issued -- he has a Ph.D. in microbiology or something. He didn't
stamp it confidential. But they know that everything he has in
his files that has an NDA with Eastman because he produced the
NDA to them. And Eastman produced the NDA to them.
So those files were always maintained as confidential.
Who funded the deal? It's not a secret as long as you pull it
out in the right context where they asked Dr. Osimitz, and then,
we can ask him: Do you know why the journal didn't put that on
there? We've got it. But they have the penchant, your Honor,
for trying this in the press. And I know you just hate to see us
over here but --
THE COURT: Well, that's not true. I want to see
somebody over here or I don't have a job.
MR. HARRISON: And let me say, I love the new building.
It's my first opportunity to be in it.
THE COURT: Particularly that piece of art I'm trying
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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to figure out.
MR. HARRISON: But, your Honor, I know you're being a
little sarcastic when you said, we'll just set y'all up for a
weekly go, but we can't fight this battle.
THE COURT: No. I've made that application to patents
lawyers for a long time. They don't want to do that.
MR. HARRISON: Well, but we can't play this game on a
different set of rules. So we will have to come back.
THE COURT: Well, I don't understand that and y'all
have confused me. They want to show and they can't show because
the information that they received right now has been under the
protective order that they signed. They want to show that
Eastman funded -- and I assume that they have basic information
that would say what Dr. Osimitz received and what labs were paid
by them. They have all of that information.
Your objection withers away after the deposition of Dr.
Osimitz if -- or does it? Are you taking the position that the
testimony he gives with regard to the compensation and the
expenditures by Eastman that led to the formulation of this
article were paid by Eastman? Would that be published?
MR. HARRISON: I think it would be, but I think it
needs to be released in the proper context. But, your Honor, by
the same token, I'm faced with an entity that's willing to say,
we've run all of these tests on Tritan, it has EA. And then, I
say, well, I want to test your test. I want to know how reliable
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your test is. I want all of your data. Oh, no. We can't give
you that. And I know that's not before you right now, but it
will be.
THE COURT: I can save you a trip. I'll order it.
That's what the lawsuit's about. Now, it will be under that
protective order, but you'll get it if that's what you
represented to me.
All right. Where are we? You've got Dr. Osimitz.
You've got the information right now under the protective order
as to the expenditures by Eastman on this study. And you've got
this guy's deposition scheduled.
MR. WINGARD: Yes, your Honor. We have that. We have
the information. In fact, Emmett O'Brien in his affidavit that
Eastman submitted in their -- attached to their motions for
protection admit that the document we're talking about is a draft
of a paper commissioned by Eastman. That's not filed under seal.
So Eastman has already admitted now publicly that they've paid
for this study. This all began with the simple request to
Eastman that the paper that --
THE COURT: Well, now, what else are you going to do?
You can have the deposition obviously, and you can take his sworn
testimony obviously. And if your client is the devil hiding in
the closet, trying to break this big company and they make an
inappropriate publication, I feel confident Mr. Harrison will
bring that in for sanctions, and if I think it is, I'm not shy.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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I've ordered sanctions far more than the jury verdict in patents
cases against the winner because my philosophy is, if you're in
the federal court, you'd better play by the rules.
So let me let you take the affidavit that wasn't
sealed. You can use the affidavit in the taking of the
deposition. The deposition, I have heard from counsel, is not
going to be pursuant to protective order, so whatever he
testifies is free game to be used fairly. I tell both sides, I
suspicion you've got corporate employees on both sides who feel
very strongly about this, but they'd better wait until the
trials.
MR. BUTTS: Your Honor, if I could respond directly to
your question, do we have information about the payment that was
made? To be clear, the authors of the paper, all five of them
when they submitted the paper said, we were paid by Eastman to
write this paper. It wasn't published. That's the point.
THE COURT: Yeah.
MR. BUTTS: And it's not that we don't have -- it's not
that they disagree. It's just that it wasn't put into the public
forum, and we want to be able to say that --
THE COURT: By the publisher.
MR. BUTTS: Pardon me?
THE COURT: By the publisher who could have --
MR. BUTTS: By the publisher. And so, it leaves the
misimpression or the lack of an impression that Eastman paid for
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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every single bit of work that is reflected in that article and
everything that was written in the article. They paid for all of
it.
THE COURT: Well, so?
MR. WINGARD: Your Honor --
THE COURT: Who would be more interested in these.
MR. WINGARD: I would point out that we do provide
evidence from Eastman's own production on page 7 of our response
where Eastman specifically misrepresents to Whole Foods here at
Austin, Texas that Eastman did not fund the study. There's a
quote from -- an e-mail from Dr. Emmett O'Brien, the same person
who signed this declaration, where it says, O'Brien states they,
referring to Whole Foods in Austin, asked if Eastman would be
able to provide documentation that we do not fund any of these
labs. I mentioned that we did not and they were happy with the
answer, end quote.
MR. HARRISON: I've got to respond to that, your Honor.
Funding laboratories is different than paying
laboratories to do work for it. Funding in the world that
scientists live in is grants. So this is almost outrageous to
take that sentence --
THE COURT: Well, let's drop outrageousness for a
minute because I don't see where the problem is.
After the deposition when you've got the sworn
testimony of Dr. Osimitz as to the contributions, compensation,
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funding, grant, whatever it was that contributed to this article,
then that's outside of the protective order, period. So you can
do whatever you wish.
However, caveat: Be careful what you do until this
trial's over because tomorrow or the next day, you could read a
little bit about the Austin Police Department. And there's one
thing about it. I don't file sealed orders. All of my orders
are public.
Okay. Anything else? All right. Then I will simply
hold this motion until the deposition of Dr. Osimitz so that it
will not be used or interrupt in any way, shape or form the
deposition, which you know exactly what my ruling will be
thereafter, and that is, his testimony is not protected by the
protective order. And I'm not going to say anything further
except that it's clear to me right now, unless somebody comes in
with information otherwise, that the publisher has a right to
publish or not publish who paid for it and had the information
available.
So I wouldn't be treading on that unless you have some
real testimony that Eastman influenced them not to put it in
there. May exist. I don't have any idea. But before I made a
press statement on that with this case pending, I sure would want
to get proof on it.
All right. We'll take a ten-minute break before the
next case.
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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MR. HARRISON: Your Honor, you also had a hearing set
for tomorrow.
THE COURT: For trial in July and it's been set for
seven months, six or seven months, I've got a case that involves
a conspiracy by the Zetas buying horses. The government's
already sold $41 million worth of the horses and still has 90
percent of the horses throughout the United States. It's a
money-laundering case. They don't have any idea how long it's
going to take, but three, four weeks is their estimate. So
unless -- excuse me. I'm sorry. Got it mixed up. That's March.
In July, I have United States vs. Raffle and Applegate,
which is the government's lawsuit against two individuals who
allegedly created a problem for, what was it, for ArthroCare that
ended up with securities and derivative lawsuits and that type of
thing. They anticipate, the government out of Washington, that's
going to take three weeks to try.
Point is, I don't know when I'm going to try this case.
I don't know if y'all have agreed to a magistrate. I don't know
if I've got a magistrate that could give you three weeks. Give
you two weeks with our docket. So I'm still looking for help,
not just in July but in April, with a three-week trial. Starting
a two-and-a-half-week trial two weeks Monday that's pushing my
civil docket. I'm already setting cases, as you know, for the
fall of 2014.
There is a chance but I can't anticipate it as long as
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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July, but I can bring in a judge. We have plenty of facilities
now. We've got new -- three other courtrooms that we can use.
Nice facilities to bring in a judge. The question is, will we
have the money to do it? I can't get any proxy for July. So I
guess, just stay tuned. That's about the only thing I can do.
I remind you, because I know you're all influential
people, that if the government would just fund the judiciary --
we're still funded in 2007. If they would fund the judiciary, it
would still be less than two-tenths of one percent of the
government expenditures. Right now, we don't even know if we're
going to have jury trials in July.
So if anybody knows anybody that can make those
decisions -- and I want to get this case tried just like I want
to get other cases tried -- call them up. Tell them to fund the
judiciary with an equal governmental party, notwithstanding what
the Congress thinks. So I'll keep you advised. Y'all aren't the
only ones. We've got a lot of cases that are in that situation.
But in July, I cannot get out of that case. I can't give it to
anybody else. I handled both the class actions. It would take a
judge a year to go through those files to be prepared in that.
So that's where we are.
MR. HARRISON: May I ask you one more thing, your
Honor?
THE COURT: Sure.
MR. HARRISON: We have agreed to extend our discovery
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deadline about two weeks. It may become three, moving it way
into March.
THE COURT: I don't care what you --
MR. HARRISON: Oh, I know you don't. But our
dispositive motion deadline is April 1. There is another judge
in the building that doesn't allow you to move that on your own
volition. How does your Honor feel if we agree to move that
dispositive motion deadline?
THE COURT: I never have stopped the lawyers from
putting it. I just warn them that if I get an opportunity to try
the case, I'll carry it if I'm not through until Rule 50 motion.
MR. HARRISON: We appreciate you need to have them, you
know, before -- the day before trial. But because discovery's
bumping right up on it, it's going to be almost impossible to get
it filed.
THE COURT: I wish I could tell you I could give you 90
days. I entered two orders yesterday denying motions for
continuance for 90 days. This case probably had more discovery
than normal, but back in the good ol' days, a couple of years ago
that we changed, because we've gotten larger dockets every year
since '91, but used to, y'all could prepare a case in a year.
MR. HARRISON: It's true.
THE COURT: I guess the good ol' days when the lawyers
just got paid at the end of the case was such a wonderful time to
do business.
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11:12:04
11:12:05
LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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MR. HARRISON: Thank you, your Honor.
THE COURT: All right. Ten minutes.
(End of proceedings.)
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 38 of 39
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LILY I. REZNIK, OFFICIAL COURT REPORTERU.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)
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* * * * * *
UNITED STATES DISTRICT COURT)
WESTERN DISTRICT OF TEXAS )
I, LILY I. REZNIK, Official Court Reporter, United States
District Court, Western District of Texas, do certify that the
foregoing is a correct transcript from the record of proceedings
in the above-entitled matter.
I certify that the transcript fees and format comply with
those prescribed by the Court and Judicial Conference of the
United States.
WITNESS MY OFFICIAL HAND this the 25th day of February, 2013.
/s/Lily I. ReznikLILY I. REZNIK, CRR, RMROfficial Court ReporterUnited States District CourtAustin Division501 W. 5th Street, Suite 4153Austin, Texas 78701(512)391-8792Certification No. 4481Expires: 12-31-14
Case 1:12-cv-00057-SS Document 73 Filed 02/26/13 Page 39 of 39